SC privacy verdict: All but overruled section 377 judgment

The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion, the SC ruled

pratap

Pratap Vikram Singh | August 25, 2017 | New Delhi


#Naz Foundation   #Section 377   #constitutional rights   #LGBT   #privacy   #Supreme Court  
GN Photo
GN Photo

The Supreme Court’s landmark judgment on privacy as a fundamental right not only shed light on a comprehensive understanding of the right to life and personal liberty guaranteed under the article 21 of Indian constitution, but also put focus on the lesbian, gay, bisexual and transgender (LGBT) community. 

While it was a moment of jubilation for many when on August 24 the SC delivered its judgment, apprehensions abound over section 377 of the Indian Penal Code (IPC) which criminalises homosexuality.
 
The nine-judge constitutional bench of the apex court ruled, “Their (LGBT community) rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom.” 
 
The apex court added, “Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”
 
Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation, the judgement said.  
 
During the hearings, the argument on section 377 was led by supreme court lawyers Anand Grover and Gopal Sankaranarayanan. 
 
“This judgment has opened the doors for the section 377 decision to be reversed. There is already a pending curative petition before the SC… may be heard and decided before the end of the year,” said S Prasanna, a lawyer who assisted the petitioners in the apex court.  
It has all but overruled section 377 judgment, said Prasanna.
 
“I personally feel that there is a strong possibility that the Constitution bench examining the curative petition is bound to go by what the Supreme Court said in course of its judgment on Thursday. There is very little scope now for those wanting to support Section 377. The only argument that can be advanced by them is that of reasonable restriction [on the fundamental rights]. But invading the bedroom can’t be considered reasonable restriction,” Justice Shah told The Indian Express.
 
It is important to note here that the Delhi high court in Naz Foundation vs government of Delhi in 2010 held that the section 377 of the IPC violates Articles 14, 15 and 21 of the constitution. 
 
“…The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21,” the Delhi high court had ruled.
 
This judgment was, however, challenged in the Supreme Court which in 2013 over ruled the Delhi HC judgment.
 
While over ruling the HC order, Justice Singhvi of the Supreme Court said, “…the division bench of the High Court overlooked that a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”
 
The nine judge bench headed by Chief Justice JS Khehar in its judgment said that “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy.… The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.”
 
“The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties,” the SC ruled.  
 
Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual, the SC said.
 
 
 

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